1. ' This is an application under section 12(2) of C. P. C. Praying that the consent decree passed on 23rd April, 1980 be set aside. The plaintiff had filed a suit for possession and mesne profits in respect of land mentioned in the plaint. The suit was compromised and an application under 0.
2. XXIII, rule 3, C. P. C. Was filed in terms whereof the decree was passed. In terms of settlement between the parties the defendant agreed to restore and place the plaintiff in Khas vacant possession of the land in suit on the condition that the plaintiff by way of compensation will pay Rs, 17 lacs to the defendant within one year from 23rd April, 1980. Upon such payment the defendant shall forth with deliver and restore possession of the land in suit to the plaintiff. In the meanwhile the plaintiff was entitled to get the land surveyed and plan for development and demarcation etc. As the plaintiff could not pay the amount within the specified period he applied for extension of time which application was dismissed. Against the order of dismissal the plaintiffs filed H. C. A. No, 111/81. However, the defendant had executed an agreement out of Court granting to the plaintiff time up to 10th December, 1981 for payment of the amount. This amount has not been paid so far.
3. After the plaintiff's application for extention of time was rejected on 1st November, 1981 the plaintiff filed the present application under section 12(2), C. P. C. The plaintiff has prayed that a declaration may be given that the compromise, was obtained by concealment, misrepresentation and fraud and therefore it is a nullity in the eye of law and consequently the judgment and decree passed on 23rd April, 1980 is liable to be set aside.
4. ' The plaintiff's contentions and the facts relied upon by him have been enumerated in paras. 6 to 13 of the application. Mr. J. H. Rehmatullah has contended that the defendant had agreed to afford facilities to the plaintiff to raise and realised money and to make payment under the agreement of compromise and that the time shall be extended and facilities will be provided for demarcation of sale. So far the demarcation and survey is concerned the plaintiff has admitted that it was carried out but the same has been nullified by the defendant by removing the markings. This is not such a fact which may amount to misrepresentation made befote the parties had entered into agreement as contained in application under 0. XXIII, rule 3, C. P. C. These are subsequent events which are hardly relevant for the purposes of this application. Likewise the plaintiff's contention that the defendant had agreed to afford facility to the plaintiff to raise and realise the money and then make payment to the defendant is not borne out from the terms of the compromise application. If this was the facility had been afforded to the plaintiff it should have been incorporated in the application because it was very material for payment of compensation and obtaining possession of the land. These facts, therefore, cannot be taken into consideration to establish that the defendant had obtained compromise by misrepresentation.
5. ' The next contention in support of the application is that when appli- cation for extension of time was made the defendant had opposed it by stating that there are other persons who have possessory rights and interest in the land. It has been denied by the defendant who is prepared to handover possession within 24 hours of payment. The plaintiff himself is not ready to make immediate payment. This ground has, therefore, no force.
6. ' The next contention of the learned counsel is that the defendant has converted two acres of land into a graveryard. The defendant's case in his counter-affidavit is that the graveyard occupies half acre only which has existed there for over 100 years. There is a grave of Pir Bukhari and some other graves of children which have existed there for more than half a century and that the defendant has been in possession of this area which was known to the plaintiff. The plaintiff has not given sufficient detail of such conversion because the conversion as alleged by the plaintiff may be material only if this act has been committed after the agreement. The plaintiff had seen the land and was aware of the condition of the land. The graveyard cannot spring up within a course of few years. The graveyard alleged to have been made is 100 years old. It would have been known to the plaintiff as graveyard cannot remain unmarked or unnoticed.
7. ' The learned counsel then stated that since the defendant had signed the agreement extending the time till 10th December, 1981 the decree is liable to be set aside. The contention on the face of it is completely devoid of any force. The extension granted for payment of the amount was to facilitate the plaintiff in respect of which he had filed an application in Court which was dismissed.
8. This fact can hardly be a ground for setting aside the decree.
9. ' In view of this discussion it is obvious that the plaintiff has failed to make out a case of misrepresentation or fraud against the defendant. The application has been filed merely to protract the proceedings and to delay the payment of the decretal amount. Significantly enough when Mr. Abbasi the learned counsel for the defendant offered that if the plaintiff pays the amount in Court instead of paying B to the defendant, the defendant will put the plaintiff in vacant possession of the land in terms of the decree, the plaintiff was not prepared even to pay the amount within 6 weeks. This clearly shows that the plaintiff is unable to pay the amount and is taking all steps to delay it. In view of these facts the application was dismissed by a short order dated 18th April, 1982.